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Hearing of the Senate Committee on the Judiciary - Federal Cocaine Sentencing Laws: Reforming the 100-to-1 Crack-Powder Disparity


Location: Washington, DC

SEN. BIDEN: Good afternoon, this hearing will come to order.

We're going to start a few minutes earlier, because two of my colleagues who will be here and have great interest in the subject, have to -- will come and make an opening statement, have to leave and come back.

So I'll get my opening statement out of the way. I say to the witnesses, all welcome, delighted to have you here. We appreciate your taking the time.

And what we'll do is -- I will make an opening statement here, and then if -- I'm told Senators Kennedy and Feingold, each plan on coming and defending my Republican colleagues too.

They have to go back to another committee meeting, and I will let them make an opening statement and then we'll turn to all of you for your statements, if that's appropriate, if you don't mind?

So let me begin by saying thanks on behalf of the subcommittee for being here, all of you.

We're going to examine an issue that has long been the subject of vigorous debate and study, the difference in the way in which federal law treats drug offenses involving powder cocaine versus crack cocaine.

As you all know, under the current law, the mere possession of five grams of crack, which is slightly less than the weight of two sugar cubes.

And these are about the size, you can't see these, but these look about the size of little sugar cubes here -- carries the same five- year, mandatory minimum sentence as distributing 500 grams of powder cocaine.

The amount of sugar that I just held up -- I want to make it clear this is all sugar, up here. (Laughter)

SEN. BIDEN: And not sugar in the parlance of the street -- sugar.

Many have argued that this 100-to-1 disparity is arbitrary, unnecessary, and unjust, and I agree.

And I might say at the outset in full-disclosure, I'm the guy that drafted this legislation years ago regarding a Daniel Patrick Moynihan who was the senator from New York at that time.

And, crack was new, it was new quote, "epidemic" that we were -- that we were facing. And we had extensive, at that time, medical testimony talking about the particularly addictive nature of crack versus powder cocaine and the school of thought was that we had to do everything we could to dissuade the use of crack cocaine.

And so I am -- part of the problem I've been trying to solve since then -- because I think -- I think the disparity is way -- way out of line.

The current disparity in cocaine sentencing, I don't think, can be justified on the facts we know today and the facts we operated on at the time we set this up.

In 1986, crack was the newest drug on the street and Congress was told this smoke-able form of cocaine was instantly addictive, and that its effect on a child if smoked during pregnancy, was far worse than other drugs, and that it would ravage our inner cities.

I remember one headline that summed it up well. And it read quote, "New York City being swamped by crack; authorities say they're almost powerless to halt cocaine."

And they called it the summer of crack in that headline.

In Congress, more than a dozen bills were introduced to increase the penalties for crack. Because we knew so little about it, the proposals were all over the map, ranging from the Reagan administration's proposal of a 20-to-1 disparity to Senator Chiles's proposal -- the late Senator Chiles, late Governor Chiles -- of 1000- to-1.

Senators Byrd, Dole and I led an effort to enact a Anti-Drug Abuse Act of 1986 which established the current 100-to-1 disparity.

Our intentions were good, but much of our information turns out not to be as good as our intentions. Each of the myths upon which we based the sentencing disparity has, in some ways, been dispelled or altered.

We know that crack and powder cocaine are pharmacologically identical and they are simply two forms of the same drug.

Crack and powder cocaine cause identical psychological and physiological effects once they reach the brain. Both forms of cocaine are potentially addictive.

The two drugs' effect on the fetus are identical. A generation of crack babies, many predicted including me, has not come to pass. In fact, some researches show that the prenatal effects of alcohol exposure are significantly more devastating to the developing fetus than cocaine.

Although, I would point out that if you ingested the same amount of powder cocaine as crack cocaine and as frequently, it would have a profound effect.

Crack simply does not incite the type of violence that was feared. Gangs that deal in other types of drugs are every bit as violent as the crack gangs.

I would argue meth is even more dangerous in terms of the way the gangs operate.

After 21 years of study and reviews, these facts have convinced me that the 100-to-1 disparity cannot be supported and the penalties for crack and powder cocaine trafficking merit similar treatment under the law.

The past 21 years has also revealed the dramatically harsher crack penalties have disproportionately impacted on inner city communities, the African-American community. 82 percent of those convicted of crack offenses in 2006, were African-Americans.

With many of the starting premises not as starkly viewed as being correct, last June 1st -- excuse me -- last June, I introduced the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act, which eliminates the disparity between crack and cocaine offenses, totally eliminates it.

It does it without raising penalties for powder because there is not a shred of evidence that shows powder penalties are inadequate.

My bill also eliminates the five-year mandatory minimum sentence for simple possession of crack, the only mandatory minimum for possession of a controlled substance.

It focuses federal resources where they are needed most, on major drug kingpins, not users and low-level dealers, and provides sentencing enhancements for all drug offenses that involve a dangerous weapon or violence.

And it provides $30 million in grants to state and local governments to fund programs that improve the availability of drug treatment for offenders in prison, jails, juvenile facilities, and those on supervised release.

I want to commend Senators Hatch and Sessions for their leadership in this issue and their respective bills to reduce the disparity.

I hope we can work together to permanently fix this injustice and I'm willing as, I'm sure they are, to consider one another's proposal and see if we can work something out.

There is a growing movement for bold action on this issue. Eight members of this committee, four Republicans and four Democrats, are supporting one of the bills pending before this committee.

In November, a bipartisan United States Sentencing Commission sent Congress an amendment to address what it called and I quote "urgent and compelling," end of quote, crack/powder -- the urgent and compelling crack/powder disparity.

Congress accepted the measure, which modestly reduced crack penalties pending comprehensive Congressional action.

The report that accompanies the sentencing commission's amendment is the fourth such report -- and I have a copy of it here -- that the commission has issued in 12 years, calling for Congress to take actions to substantially reduce the crack/powder sentencing disparity.

Editorial boards around the country have also urged Congress to act. The New York Times, San Francisco Chronicle, St. Petersburg Times, Detroit Free Press, and Miami Herald, all have endorsed my bill and I'm sure there is -- as many as have the bill of my colleagues, who have an alternative approach.

So, I welcome a debate and discussion on this issue because I'm not convinced that any disparity in the sentencing of crack and powder defendants is justified, given what we now know. Now, I would like to turn over to the podium -- the -- excuse me -- the floor, to my distinguished colleague from Alabama, Senator Sessions.


SEN. BIDEN: I hope we can.

I would point out, back at the time we were writing this legislation, the sentencing commission and I recall testimony from distinguished witnesses pointing out that in Florida, unless someone was -- had five kilos of cocaine, they were not brought -- they were not moved in the federal system.

We just -- it was just swamping everything. So -- but rather than go back and talk about what it was, I'd like to get this expert testimony as to what it -- how they see it now.


SEN. BIDEN: We'll do -- (off mike) -- Senator Kennedy comes back and has to leave, I'll yield him my time and get the other -- (off mike) -- I have a lot of questions as you might guess.

Doctor, let me begin with you?

It is the route to the brain not the nature of whether it's freebased or the powdered cocaine that is -- impacts on how rapidly that dopamine is interfered with, is that correct?

I mean, it's the route, whether snorting or injecting it just -- it has the effect on the brain more rapidly than snorting it, is that correct?

DR. VOLKOW: That is correct. And the faster it gets, the more intense its effects. But the amount -- the molecule is identical.

SEN. BIDEN: Right. Now, does that beg the question or answer the question as to whether or not if one were to -- is there a higher rate of addiction in the clinical definition of addiction, X-number of times a week, etcetera, is there a higher rate of addiction for those who snort cocaine versus freebase or inject cocaine?

Or is it one way or another, is the same effect?

DR. VOLKOW: There is a higher rate of addiction when you inject or when you smoke than when you snort.

SEN. BIDEN: All right.

That was the premise upon which we started this whole thing off. Again, I have to take blame for what ended up being what was in law at the time back in '86 as the author of this legislation. That was the testimony.

Now, is -- and may I ask any of the other witnesses -- is the fact that if one more -- in the other study I remember seeing years ago back when I used to chair this committee in the '90s was that there is a correlation between HIV -- a higher correlation between HIV and crack-use than HIV and powder-use, because of the nature of how rapidly the "high" occurs and how quickly it diminishes so that people would repeat it and they would binge on crack cocaine.

I remember going into Philadelphia with -- bringing a group of policeman down in the south side of Philly -- in South Philly and there was a particular place where you could see people, walking in the side-door.

A woman standing up, and then her head would be lowered and she would perform a sexual act and then 10 minutes later another, you know, she would get enough to get a hit for her.

She'd get literally paid in crack cocaine. That's what she was being paid by the drug dealer and the -- and as well as her, in this case the pimp that was handling her.

And there was a lot of discussion about how the -- promiscuous sexual behavior is -- was associated with the frequency and the need for this hit. As the addiction occurred that it didn't occur as rapidly with people using powdered cocaine.

Is there any truth to any of that that --

DR. VOLKOW: -- well, then again powder cocaine can be administration by a route that is less addictive, snorting or by a route that is as addictive as snorting.

SEN. BIDEN: I know, but isn't the vast majority of the consumption of powder cocaine through the nostril and not through the veins? It's a relatively small percentage.

DR. VOLKOW: All right, in terms of people -- individuals taking --

SEN. BIDEN: Right.

DR. VOLKOW: -- cocaine, that's correct.

SEN. BIDEN: Right.

DR. VOLKOW: And with respect to your question about the risk for HIV, the highest risk actually is for probably almost any drug is injection of cocaine more than smoking of cocaine, more than injection of heroine, because exactly of what you were saying -- you need to administer the drug very frequently every 40 (minutes) to 30 minutes.

And so you're injecting constantly and that leads many people that addicted and what's called "graduation," to prefer smoking over injection --

SEN. BIDEN: Right.

DR. VOLKOW: -- because of the high risk of HIV.

SEN. BIDEN: Right. And there is a high risk to HIV in that circumstance because of the needle, or is it because of the promiscuous behavior that it promotes?

DR. VOLKOW: Two factors. The needle, the contamination through the needle is one. And the second one, intoxication with cocaine leads to very risky sexual behaviors, whether it is injected more than smoked or even snorted.

SEN. BIDEN: Okay. The next question and the last one I have for you, Doctor, is -- I am -- been a very strong supporter of drug rehabilitation programs and -- the -- investing more money in the drug rehab and you made the reference that programs actually work and -- but let me ask you -- is there any difference between of those people who are subjected to whether that is in the prison system or voluntarily move into drug rehabilitation programs associated with cocaine, by whatever means it's administered, is there a breakdown among them, based upon whether they get into rehab as a consequence of having been addicted to cocaine through freebasing or cocaine through snorting?

I mean, or is there no distinction? The people end up in treatment -- is it harder or easier to treat one than the other?

DR. VOLKOW: To my knowledge, there is no evidence of incidence of treating one individual, because they were using hydrochloride versus freebase. There are many other factors that will determine that prognosis.

SEN. BIDEN: Right.

DR. VOLKOW: But not whether they are freebasing or using the hydrochloride.

SEN. BIDEN: Now, the allegation is made and continues to be made that there is a greater amount of violence associated with freebasing of cocaine.

I assume that relates to everything from the way in which it is sold, to the way in which it is used and the impact on the brain and what it causes reactions to people. Is -- another thing we hear a lot about and there's some evidence that speed or methamphetamine -- there's an excessive amount of violence associated with methamphetamine, the consumption of methamphetamine.

Is there a distinction between -- I'm not talking about the violence -- the violent side of the behavior. I used to say to people when I was doing this on a regular basis -- in those years, I held thousands of hours of hearings at -- if I had to live in an apartment house where everybody was freebasing or an apartment house everybody was injecting heroin, I would have lived where they inject heroin, because I don't want the violence associated with injection of heroin and being on a high from heroin is significantly different than that associated with cocaine induced paranoia or with regard to speed.

Is it true that there is greater degree of violence associated with cocaine, and if so is it -- is there a distinction between violence that is induced as a consequence of powder versus crack?

DR. VOLKOW: Well, there are -- first you asked me if there are distinction between cocaine and methamphetamine, and I'll say that methamphetamine is even a more potent drug than cocaine in terms of its ability to increase dopamine and also its duration of effect.

And as a result of that, circumstances being equal, you can predict that one will -- could have potentially more adverse effect than the other.

However, we need to consider that the consequence that we've seen socially are not just the problem itself of the chemical form of the drug, but the nature of the environment that gives accessibility to that drug. So when you speak to me and say, is there more evidence for example, of violence in environments where you have high levels of crack versus a rural environment where a person may be by themselves taking methamphetamine, I say, well, in that case what's tipping the balance is your surrounding and not the drug itself.

But coming back to the chemical actions of the drug, if you inject cocaine, actually it's going to have more aggressive -- will facilitate aggressive behavior more than heroin. So, Senator, you chose well. You're much better off with heroin than cocaine vis-à-vis with aggression.

SEN. BIDEN: So let me clear, I said living in an apartment with others who use an apartment complex, not to use self.

DR. VOLKOW: Yes, I took an -- and in that -- in the clinical models where you can take rats for example, and put them together, and give them cocaine or give them heroin, the level of aggressiveness to each other is much greater with cocaine than heroin.

There's no reason that -- we don't have an animal model for freebasing cocaine, so we inject them and the higher the doses, the -- you inject them, the more active your animals are going to be.

So there you have an element of doses and the environment that which you are giving the drugs to the animal. But there is no -- I mean, that's why I'm sort of saying, when you inject or when you smoke, the same drug is going to end up in your body. There's no difference at all.

The circumstances may be very different and I think that's where the issues become more complicated and it's not just an answer about the potency of hydrochloride versus freebase, because if you're asking me directly, they are identical molecule.

The circumstances may be very different and then that's what determines the outcomes.

SEN. BIDEN: Thank you. I have a lot of questions, but I'm going to yield, and I'm going to -- I have questions for the rest of the panel, but I'm going to yield to my colleague, my time is up.


SEN. BIDEN: Thank you very much. Doctor, I've one last question for you. I remember years ago, meaning 10 years ago, may be 15, that crack cocaine was viewed as a great equalizer.

There was interesting phenomenon. In the '80s, the -- I don't remember the exact number, I don't have those in my staff materials, this is from memory -- but the '70s and '80s, there were somewhere between two or three times as many men consuming control substances as women and then the argument was made, whether it's true or not, that when crack was introduced in the late '80s, it became a great equalizer, that women who would not snort cocaine for fear of -- for the first time, for fear of distorting their nostrils or would not put a needle in their arm, felt a lot more comfortable smoking, and that that generated a closing of the disparity from two or three to one -- men versus women to much closer to, one to one.

Is there any truth to that?

DR. VOLKOW: To my knowledge, there is no evidence to that particular statement indeed, and that's why I make that point that most cases of addiction with freebase start with cocaine snorting.

And that's the other issue that we need to keep in my mind, because the sense that we become comfortable by having only cocaine hydrochloride and that will fix the problem of freebase, is actually not justified.

Why? Because once a person becomes addicted, they will seek a different route of administration. If there is no freebase, they will inject, and history has already given us that lesson.

The other thing, today in my curiosity I entered into Wikipedia to see what you all could get there easily out of the web, on crack cocaine. And lo and behold you have there the recipe for producing cocaine freebase from cocaine hydrochloride.

So let's not cheat ourselves. If someone wants to take cocaine freebase they can cook it themselves, just following the guidelines. So there is -- there is no evidence in that respect, therefore coming back to your question that it was the equalizer in the use of drugs, for cocaine or for other drugs, that's not the case.

Unfortunately, we have been seeing equalization on the rates for drug use, both for legal and illegal in women, and for all types of drugs. I mean, some, like prescription medications, females are starting to outnumber males.

So it was not due to crack.

SEN. BIDEN: Thank you. May I ask you, Ms. Shappert, what is the Department's position on the minimum mandatory proportion of -- forget equalizing, but the minimum mandatory requirement that exists for use of crack cocaine?

MS. SHAPPERT: I cannot give the Department's position on minimum mandatory. I can tell you the Department is interested in a dialogue and discussion with this committee and the Congress about changing the ratio of cocaine and cocaine powder, and addressing the sentencing disparity, in light of the concerns that have been raised by many different members of the community.

And we link that to the equally significant issue to us, of public safety, particularly with the application of retroactivity in the 20,000 individuals who are going to be eligible for re-sentencing.

SEN. BIDEN: Now both judges -- correct me if I'm wrong -- said, I thought, a similar thing but I may be mistaken.

When you indicated that you are willing to look -- the Department is willing to look at retroactivity as it relates to the individual case of violence and the degree to which violence is associated with the sentence that was received, how do you -- what is the matrix you would use?

I think Judge Walton said if someone had been violent 15 years earlier, had another violent offence -- may be I'm mistaken, it may be a new judge, I don't know who said it -- but that someone may have been convicted of consuming crack cocaine, but the violent offence he or she has on their record was unrelated to that -- to that particular offence.

Are you saying that the violence has to be related to the offence, or the violence related to the individual who is incarcerated, as opposed to the specific offence relating to crack?

MS. SHAPPERT: I'm referring to what the attorney-general said last week, which is that in terms of reviewing and addressing this problem of the 20,000 individuals who are eligible for re-sentencing, the concern of the Department of Justice is with violent offenders and recidivists.

We are far less concerned with first offenders, and small possession cases, and in reviewing that question and addressing it with the Congress, the dialogue needs to be focused exclusively -- rather not exclusively, but significantly on the public safety question.

So all of those matters need to be worked in the content of protecting the community, recognizing that these were legitimate sentences that we all understood that they were legitimate sentences, and retroactivity will have profound consequences for a lot of the communities that are the most fragile.

SEN. BIDEN: Judge -- would you respond to that, Judge Walton?

JUDGE WALTON: Well, again, I think the problem becomes, what do you say in your legislation to ensure that you are truly keeping locked up those who are going to actually pose a danger to the community if they're released. And I think that's very difficult to effectuate through legislation.

As the situation now exists, if Congress doesn't take action, it will be imperative on the judges, pursuant to the direction of the Sentencing Commission, to make an assessment as to whether someone poses a potential danger to society, and you obviously will take into account the information provided at the time they were sentenced, by way of a pre-sentence report, which will be made available to the judge, if he or she doesn't have it.

We will be receiving from the Federal Bureau of Prisons, information about the individual's institutional adjustment, and if they have infractions of a violent nature, then judges would factor that in.

I know if I had that before me, I would not be inclined to grant the reduction. So, I think looking at it from an individualized perspective ends up making the process fair, as compared to categorically saying that a certain standard set forth by legislation is going to control what happens to all offenders.

SEN. BIDEN: Judge, does the Commission have a sense of -- I mean, the conference, as to what kind of workload this would impose to have to review 20,000 -- you don't handle 20,000 criminal cases a year, in the -- (cross talk).

JUDGE WALTON: Well, I mean, that's spread throughout the entire country and we're only talking about -- as was indicated, around 1,600 the first year. We obviously thought about that and we obviously are concerned because we do have tremendous caseloads.

On the other hand, our conclusion was that we're willing to rollup our sleeves and tackle this problem.

SEN. BIDEN: I just want to make sure -- I'm not taking an issue with you. I just -- as I, especially in the Rehnquist Court and now in the Roberts (ph) Court, there is a great, legitimate concern about the caseload of the federal district court judges and that's what we're talking about here, correct?

JUDGE WALTON: That's right.

SEN. BIDEN: And so, the question is that -- if memory serves me and again, I've been paying more attention to the other committee I chair, quite frankly, than the detail of this one for a while now, but if I'm not mistaken, the total number of prosecutions a year in the federal court are less than 25,000.

There's more prosecutions in the city of Philadelphia in one year than there are in the entire federal criminal justice system, at least there were several years ago.

And so my question becomes the practical. I'm trying to figure out, along with my colleagues, a practical way to -- I happen to think it should be -- there should be no disparity, but a practical way to figure out how to deal with the disparity, which everyone seems to be coming around.

There has to be some change from a 100 to 1, and secondly the impact on retroactivity. My legislation, that you've endorsed Mr. Felman, does not include retroactivity, for example.

And so that's why I asked -- I just want to make it clear for the record, why I'm asking -- I'd hate like heck for us to get in a position where we've reached a consensus and then find out that the bench says, "Whoa, whoa, whoa, we can't handle this. We can't do a review of 1,600 cases next year, in terms of the sentencing -- determining whether or not the retroactivity applies.


And so if we go this route, we're going to need to work with you to make sure that we're in a position, if that's the case, if that's the route that is chosen, that the judicial conference feels confident that they can do this without affecting the Speedy Trial Act, without affecting a whole range of other work -- caseload work that you federal judges have right now.

That's the reason I raised the question.

JUDGE WALTON: Well, the Judicial Conference has not taken a position on whether if there is a legislative fix, that should be made retroactive. The only position we've taken is in reference to the two level decrease.

SEN. BIDEN: Well, it would be the same effect, I mean, in other words, even if we do nothing at all, if we remain silent, we can't get a consensus, then what happens is you're faced with this retroactivity and the question is could you handle it now, unlike -- based on the Sentencing Commission recommendation? Could you handle the caseload? Yes, Ms. Shappert.

MS. SHAPPERT: To be honest with you, I'm not sure if we all can. If you've noticed, 50 percent of those cases are going to fall on three circuits, the 4th, the 5th and the 11th.

A look at my district. We're going to have at least 536 and that number's misleading. The commission tells us 536 will be eligible, but the number is misleading for several reasons.

First of all, we're individuals who've had Rule 35 and have their sentences reduced, the sentence who we thought would not be eligible for the retroactivity will be. So that increases the number.

The other factor we're finding in my district is that marijuana offenders, ecstasy offenders, fraud -- defendants are also filing petitions thinking that they're eligible for this too. So we're having to sort through hundreds of cases to --

SEN. BIDEN: Do you have in the federal system many marijuana offenders?

MS. SHAPPERT: Yes, in fact, we do. Not as many as we do for crack cocaine. I recently got a life sentence for a marijuana offender. So yes, we do prosecute marijuana.

SEN. BIDEN: I assume that was, like, a shipload.

MS. SHAPPERT: No, it was, like, several tractor trailer loads full.

SEN. BIDEN: Okay, I --

MS. SHAPPERT: The point being here is that we're dealing with a lot of cases that have nothing to do with crack cocaine. And the files have been archived. This 20,000 people represents 10 percent of the federal prison population. And it's fine to say that we'll have sentencing hearings for each and every one of these individuals to consider two levels.

But there are several factors. Files have been archived, witnesses are gone, agents have retired. We don't have the same resources as prosecutors. And if other circuits do what the ninth circuit has done and seek to give a full-blown sentencing hearing, we're not talking about, simply a two-level reduction, we're talking about potentially much more significant reductions in sentences. Prosecutors who are -- have to review a file that's five or seven or ten years old in addition to our regular caseloads.

JUDGE WALTON: I hear what the Justice Department is saying I was formerly a member of the Justice Department for years. I don't hear judges crying out and saying we're going to be overwhelmed and therefore we shouldn't try and fix this fundamentally unfair process.

I don't hear probation department officers saying that. My probation officers said they feel that they can address the issue. So I just don't hear that coming from the judiciary that we don't have the resources, we're not willing to invest the time to address this problem.

JUDGE HINOJOSA: Senator, I was told that this would not be a hearing about retroactivity but I do want to say --

SEN. BIDEN: Well, it's really not. I just -- but it does come off with the context of what we're hopefully going to negotiate with the --

JUDGE HINOJOSA: I do want to say something on behalf of the commission. I don't think anybody should be left with the impression that the commission just jumped into something without having thought about this.

And this bipartisan commission took the time to conduct studies, to have public hearings, to receive public comment. In fact, we received over 30,000 public comments either in form of letters or in form of -- from the ABA or other individuals and organizations.

We had public hearings, the Department of Justice was present as well as was the Judicial Conference, we heard from the Judicial Conference. And we looked at the factors we normally look when we make a decision under the statutes which we're supposed to do every time we reduce penalties and that's how we did it.

And it was important to us that the Judicial Conference recommended and indicated that they could handle it and that they would be -- they were supportive of this, as well as the other individuals that we heard from. And the commission having done that, then felt this was the right thing to do. We've done it in the past with regard to other drug reductions. It's been handled by the courts, and that's how the commission made its decision.

This wasn't a just -- not well thought out or we didn't look at all the possibilities. We also then proceeded to indicate that this is not a full rehearing, as far the sentencing, that this was not a full re-sentencing. We did this under our guidelines; we have the statutory authority to do that.

We stated that, we indicated that there should be public safety consideration on the part of the courts. This is not automatic. Obviously a federal district judge will have to make this decision, it can't be denied. And therefore, that will happen in these cases. Each one of these will be looked at with regards to people with violence in their past.

As Judge Walton indicated, these are individuals who have received higher sentences because their criminal history categories are higher in some cases, they became career offenders.

And so all of this has been thought out, their sentences reflect that. And the commission thought about this, unanimously voted on this. And I don't want anybody to be left with the impression that the commission is not concerned about public safety, and that we haven't done what's necessary with regard to trying to protect them.

SEN. BIDEN: Judge, understand, I'm trying to make your point. I'm not suggesting that it was irresponsible. But I do think for the public at large and the press that's here listening to this hearing which has created a great deal of interest for the reason that's been debated for so long and there is such a disparity that they understand in open public testimony, what each of you think.

We have a member of the Sentencing Commission, two federal judges, we have a defender, we have a scientist and we have a prosecutor. And I just want to make sure that everyone understands that the position of each of your -- from each of our purchase, from each of your expertise.

And Ms. Shappert, do you want to say something?

MS. SHAPPERT: Yes, and I deeply respect the work of the Sentencing Commission. And in fact, I testified on behalf of the department in front of the Sentencing Commission. One thing that I don't think was considered by all persons and I'm sure that the Honorable Hinojosa did consider it.

But one thing that's important to remember is that federal public defenders did not acknowledge or did not underscore that many of them would be seeking full-blown re-sentencing hearings.

And I'm informed that many public -- federal public defenders are promoting full-blown sentencing -- re-sentencing hearings, looking to the law of the Ninth Circuit, and the Ninth Circuit has already had a decision coming out where they are making Booker (ph) retroactive for these re-sentencing hearings.

SEN. BIDEN: We could legislate that, could we not?

MS. SHAPPERT: Yes, you could. Yes, you could.

SEN. BIDEN: We could make that painfully clear. And with that -- with their help, would that go a long way in resolving the department's concern? In other words, if it were not a full-blown hearing, if it were along the lines of the Sentencing Commission recommendations, how much difficulty, if that were quantified, how much difficulty would the department have with that -- that approach?

MS. SHAPPERT: Well, it would, certainly dramatically ease our workload and make things, we believe, more consistent across the country. It still would require that all of these -- the sentence be eligible for re-sentencing hearings.

We're still concerned about the violence associated with the backgrounds of some of these individuals. We still believe that there needs to be a retroactivity fix and that the Senate is the place where that needs to happen.

SEN. BIDEN: Mr. Felman, from your perspective as a defense lawyer, how do you do this?

MR. FELMAN: I think it's important that we not make these decisions based on myths. I've been hearing a lot about these are some of the most violent people. These are, by definition, not crimes of violence. These are nonviolent offences.

What we've just heard is that 90 percent of crack offenders had no hint of violence about them at all. There's no threat of violence, there is no actual violence 90 percent. So we're talking about 10 percent of the 19,000. And the 19,000 gets turned around a lot. That's the number of re-sentences that need to be done over the next decades, the next 20 or 30 years.

There are 70,000 sentences a year in the federal system. And we're talking about 1,600 that need to be done now. And let's assume that all 1,600 are released. And I've read the attorney general's comment suggesting that we should all be in fear of those 1,600 people who are, by definition, convicted of a nonviolent crime.

And the statistic that is missing from that discussion is the number of people who are going to get out of prison this year anyway, it is 650,000. And for the attorney general of this nation to put our people in fear over the release of 1,600 people, knowing that otherwise, 650,000 were going to be released, is truly disappointing.

And even these people will not be released if a judge looks at them and says, these people could be violent; that 10 percent, they may not be released. Even if we let all these people out, we will still have, you know, still have locked up more people this year than ever before.

And so -- I'm in the district with the number two amount of crack cases, the second most district -- this is the Middle District of Florida. And we're in the 11th circuit. And it's my understanding that the 11th circuit and the fourth circuit have both ruled that you're entitled to do a full re-sentencing. The only circuit that has ruled that you are is the ninth circuit.

And so in my district, I don't hear anybody complaining. The probation officers, and the prosecutors and the federal defenders have been comparing lists, they've been working diligently, there is not a tsunami. They are prepared to professionally discharge their duty and to process these cases and to get it done. Thank you.

SEN. BIDEN: Thank you for the input. Jeff.


SEN. BIDEN: Well, what I'd like to do, and I don't want to make additional work for you, or keep you much longer. But I've a number of additional questions, maybe I can submit to you in writing. And they're not -- they don't require long answers.

But I would like to go back to -- it seems to me -- if we're going to -- it's not sufficient that we merely -- that we merely reduce the disparity. And again I've legislation to equalize it.

But it seems to me, part of this, when we figure into this, this overall debate with regard to crack cocaine versus powdered cocaine, is the mandatory minimum for first-time offenders as well as this notion of retroactivity, which we're going to have to face.

I acknowledge this was not the purpose of the hearing, the retroactivity. But it was raised as part of what is essentially, and I appreciate it. I thank the department for essentially publicly acknowledging they're prepared to negotiate an overall settlement of this. What everyone acknowledges is not merely a disparity but an unfair disparity.

And so there's three pieces to it, one is, well, whether it's 1- to-1 or 100-to-1 or something in between, two is the minimum mandatory of first offenders, and the third is how to deal with, if we accomplish any of that, retroactivity.

And it is interesting that chart that's just been placed up for violence involved in powdered versus crack cocaine, the larger message of that chart, as I understand, Doctor, is basically that in, on average, 90 percent of the time involving cocaine, there is no violence associated with it. That's the sort of larger overarching piece about this, going to this issue of -- are we going to release 25 percent of the prison -- federal prison population back into the street who are violent criminals, who we're going to be putting back in the street.

And so I hope, and we'll do this not privately, like secret, but not in the hearing context. I hope we can -- and I'm sure that Senators Sessions and Hatch are prepared with me to sit down with the department to see if we can come to some greater sense of what a common ground might be.

It may not be, my intention is to pursue no disparity. But I've also -- I'm a realist; I've been here for a long time. And I would rather get something good done than nothing done at all. And so that's the context in which I raise each of these.

One of the questions that I had and there may be no answer to it, but I found interesting and I'm -- quite frankly, I didn't know, was that the -- let me find the statistic, that back in the mid '90s, the sentences for crack cocaine were 25.3 percent longer than a powdered -- now it's 50 percent longer. Is there an explanation for that, Judge? I mean, is there a reason for that, you can --

JUDGE WALTON: Well, there are some possibilities as to what we consider may be, the reasons for it. Part of it is, there's a slightly higher number of people that get sentenced for crack that are subject to the mandatory minimums. And their criminal history category tends to be the averages three as opposed to two. And so the safety valve provisions apply in about 13-1/2 percent in the crack cases. But in about 44-1/2 of the powder cases, people qualify for the safety valve provisions.

SEN. BIDEN: I see.

JUDGE WALTON: And so that may be some reason that there is more relief for powder defendants because of their criminal history, which again shows, how criminal history plays a part with regards to sentences of crack defendants from the standpoint of getting them higher sentences and therefore, they would not go below the mandatory minimums.

SEN. BIDEN: And Doctor, I warn you and implore you, I plan on in this subcommittee, holding additional hearings on treatment programs, and what treatment regimes we should be involved with. And I'm going to ask you if you'd be kind enough to come back and talk to us. One of the things that I -- I was the author of the drug court legislation and it seems to me that it's not fully appreciated, the value of those courts and the funding of them. But so I just would, by way of warning, I'd ask you come back and testify before us.

And the other thing I'd like to suggest is that -- and may, after we have a discussion over the next several weeks, I hope, may very well, either one-on-one or even possibly reconvene the panel to debate and discuss what may or may not be something we can work out.

In the mean time, let me turn to staff and ask if there's anything glaring that we should have asked that I didn't?

And I will invite my colleagues who are not able to be here. And again, I'd ask your bosses to submit just one or two questions if they want. I want to able be to get these folks back. So I don't want to send them off with too much homework here.

But that -- I do have three or four questions that I'd like to ask that are more in the weeds than we've been discussing here, and I don't think are going to particularly enlighten this discussion. But I think we need them for the record if you all are willing. Would any of you like to make a closing comment or an observation?

DR. VOLKOW: Well I want to first thank you for taking leadership on this issue and for bringing up something that has become one of our major initiatives, the notion of treatment on those drug abuses that end up in the criminal justice system. This probably is one of the things that we can do that can change both criminal behavior as well as substance abuse.

SEN. BIDEN: You know, those 600 and some thousand people being released, a number of them are walking out with a bus ticket and an addiction as they walk through the gate, as they walk through the gate to freedom. They walk through addicted, addicted, because of availability of drugs in the prison system, particularly in the state system.

And I -- we're also going to be holding hearings on a piece of legislation that Senator Specter and I have on the Second Chance Act, is what do we do about those folks because a significant number go from that prison gate onto underneath the bridge, because there's no housing, there is no employment, there's no -- so we have to be -- take a little look at the shifts, Mr. Felman.

MR. FELMAN: I just wanted to make sure that this statistic about releasing 25 percent of the federal prison population is properly understood. What we're talking about is 200,000 inmates, roughly, and we're talking about releasing 20,000 of them. But we're not talking about releasing 20,000 of them now. We're talking about releasing 2,000 or less now.

So we're talking about, actually less than one percent of the prison population that would be released at any given time.

SEN. BIDEN: I'm glad you mentioned that, it's invaluable.

MR. FELMAN: And so I just want to make sure that that was clear. And to reiterate the ABA's position that although, obviously there are different positions about what the proper ratio should be, that we believe, very firmly, that there is no basis for a ratio other than 1- to-1 because these are ultimately the same drug. There are no other drugs that are punished based on their mode of ingestion.

That to the extent that there is greater violence associated with crack, the way the guideline should address that is to punish the people who are actually violent by increasing those punishments. To build in a specific offense characteristic like that into the base offense level would result in double punishment.

All crack, we know, by definition, was once powder.

And so it's a question of where along the chain of distribution that you want to really lower the hammer. And if we're hammering only the people with the crack, what you're getting is the street-level dealer at the end of the distribution chain.

And so there isn't any reason just because crack is or is not more addictive or is perceived to have these other issues. It all comes from powder. And so we believe that fairness must not only be actual, it must be perceived to be real. And that the African- American community might continue to have a perception of unfairness if there is anything other than a one-to-one ratio.

JUDGE WALTON: One other thing I want to emphasize which is what Judge Hinojosa indicated. And that is that when the Sentencing Commission has taken similar action regarding other substances, they have made it retroactive. And what would the message be to minority communities who are most affected by crack is, if we change it as it relates to crack but we didn't do it regarding other drugs, what is that saying about again, the fairness of the process.

MS. SHAPPERT: Senator, I'd also point out that the Department of Justice is always opposed to retroactivity whether it was for the LSD penalties or for marijuana. But the more important point I'd like to make is, that March 3rd the retroactivity goes into effect. We're on a very short time window right now, because if something isn't done before March 3rd, there will be exposed factual issues that will come into play. So I would urge your committee to meet with the Department of Justice as quickly as possible so we can start moving.

SEN. BIDEN: It's a valid point, I agree with that and we will -- I must say in closing that beyond and the point Mr. Felman made and you made, Judge Walton, that perception matters in terms of the fairness of the criminal justice system. And that's one of the reasons why I went to one-to-one.

You could make, I think, an argument that there could be some slight difference, but as a practical political matter, I mean that in the broader sense of the fair administration of justice, I think it's reached the point where it is perceived to be completely, completely out of whack and viewed as targeted.

I have a son who is a federal prosecutor. As a matter of fact, I've a son who is the attorney general of the state of Delaware. And it's interesting to hear him talk about this from the state level and to hear his concerns about the way in which he was in the Philadelphia office and the large federal office and about how minimum mandatories were leveraged to do a lot of things that didn't sit well with him.

And it's just -- so there's a lot going on here. But the perception, I guess, the only point I'm trying to make is perception does matter in this case. And I look forward to working with the Justice Department and my colleagues to see if we can get something done quickly.

And Doctor, I look forward to having you come back to speak about things that are very near and dear to my heart, particularly, as it relates to prevention and treatment. Thank you all, very, very much. We're adjourned.

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